FTC Returns to Berkeley to Examine Intellectual Property Markets

By Fred Sandsmark

Patent law and business experts converged in Berkeley recently for Federal Trade Commission (FTC) hearings that explored how intellectual property markets are evolving.

The FTC held four previous hearings in Washington, D.C. But this final meeting convened in Berkeley because West Coast information technology and life sciences companies are creating business models that involve buying, selling, and licensing patents. The FTC traveled to the source to understand and respond to these innovations.

FTC officials, including attorney Bill Adkinson, Deputy General Counsel for Policy Studies Bill Cohen, and Assistant Director for Policy Suzanne Michel ’93, gathered opinions from dozens of panelists. They included academics from UC Berkeley and other universities; representatives from Amgen, Apple, Google, Microsoft, SanDisk, ZymoGenetics, and other tech companies; and patent law practitioners from Fenwick and West, Morrison & Foerster, Wilson Sonsini Goodrich & Rosati, and other top firms.

The two days of intellectual property hearings examined the life sciences and IT industry marletplaces, academic perspectives the technology marketplace and trends in patent remedies. All topics were explored in the context of how they affect both competition and innovation.

This is an important perspective that the FTC brings to patent system debates, Barr said. “The FTC doesn’t have an official role with Congress or the patent office,” he explained. “They’re an independent agency involved with competition law.” Still, previous FTC IP hearings held in Berkeley in 2002 resulted in a report that had considerable impact on the patent reform legislation pending in Congress.

“Some of the reaction the first time the FTC held hearings in Berkeley was, ‘Who are they?’” Barr explained. “But they had an influence because their report was well-written and made fair recommendations.” Barr will participate in drafting a report based on the current round of hearings, once transcriptions and public comments are compiled and posted online. Barr said that sort of transparency is a hallmark of the way the FTC runs its hearings.

Coincidentally, the transparency of the current patent system was one area of lively debate at the Berkeley proceedings. Other discussions included comparisons between the American and European patent models, the role of non-practicing entities (called “patent trolls” in some circles) in the intellectual property markets, and ways to balance the needs of individual inventors against those of large corporations.

Boalt professor Peter Menell, who served on a panel at the hearings and co-directs BCLT, said the information-sharing at Berkeley was “more open and honest” than normally occurs at legislative hearings. “What the FTC’s trying to do—and what we’ve tried to do—is provide a place where everyone feels welcome to share their ideas and to talk in a spirit of collaboration and finding common ground,” Menell said.